High court takes on a new affirmative action case

The Supreme Court decided yesterday to take a second case concerning affirmative action in university admissions, agreeing to review a lower court’s decision that said Michigan’s ban on the use of race in college acceptance decisions was unconstitutional.

A bitterly divided U.S. Court of Appeals for the 6th Circuit struck down the ban in 2012, six years after it was approved by 58 percent of the state’s voters. It is similar to state constitutional amendments in several other states, including California, New Hampshire and Florida.

The high court accepted Michigan’s appeal of the 6th Circuit opinion and will hear the case in the term that begins in October. The case will be heard by just eight justices; the court noted that Justice Elena Kagan recused herself.

The court earlier this term considered a challenge to the admissions process at the University of Texas, which considers race as one factor in choosing part of its freshman class. The justices heard oral arguments in that case in October and has not issued a decision.

Some had thought the court might hold the Michigan case until it rendered the Texas ruling, but the cases present different issues for the court. Michigan’s is a constitutional amendment forbidding the use of race. Texas contends its use of race in limited circumstances is sanctioned by the Supreme Court’s recognition that universities have an interest in building diverse student populations.

A bare majority of the Michigan appeals court ruled that the ban on race-conscious admission decisions “reorders the political process in Michigan to place special burdens on minority interests” and thus violates the Constitution’s guarantee of equal protection for all races.

Circuit Judge Guy Cole, writing for the majority, said Michigan’s Proposal 2 “eliminated the consideration of ‘race, sex, color, ethnicity, or national origin’ in individualized admissions decisions, modifying policies in place for nearly a half-century.”

He added: “No other admissions criterion - for example, grades, athletic ability, geographic diversity, or family alumni connections - suffered the same fate.”

The majority based its decision on two Supreme Court precedents – one from the 1960s, another from the 1980s – that said political processes could not be changed in a way that made them more burdensome on minorities.

Those decisions, Cole wrote, “emphasize that equal protection of the laws is more than a guarantee of equal treatment under existing law. It is also a guarantee that minority groups may meaningfully participate in the process of creating these laws and the majority may not manipulate the channels of change so as to place unique burdens on issues of importance to them.”

But one dissenting judge, Richard Allen Griffin, called the decision “the antithesis of the Equal Protection Clause of the Fourteenth Amendment. The post-Civil War amendment that guarantees equal protection to persons of all races has now been construed as barring a state from prohibiting discrimination on the basis of race.”

Michigan Attorney General Bill Schuette, a Republican, asked the high court to review the decision, which he said in an interview turns the equal protection guarantee “upside-down and inside-out.”

In his petition to the court, Schuette wrote:

“Until now, no court has ever held that, apart from remedying specific past discrimination, a government must engage in affirmative action.”

California’s similar amendment banning racial preferences in university admissions was upheld by the U.S. Court of Appeals for the 9th Circuit.

The NAACP Legal Education and Defense Fund said the constitutional amendment has hindered minority enrollment at the state’s most selective public universities. At the University of Michigan, the number of African-American undergraduates fell from 6.7 percent in 2006 to 4.5 percent in 2010.

Mark Fancher, an attorney with the ACLU of Michigan Racial Justice Project, said in a statement that “Prop 2 allows alumni to simply drop in on admissions committee members to lobby for a legacy policy. Yet it forces proponents of admissions policies that include students from broadly diverse backgrounds - including all racial and ethnic groups – to hit the streets with petitions to amend the Michigan Constitution before they can have the same chance.”

The University of Texas case involves a white student, Abigail Fisher, who contends the university’s use of race in a small percentage of admissions decisions allowed admission to less qualified minority students and cost her a spot in the freshman class.

The university contends its use of race is modest and in line with Supreme Court precedent that acknowledges the importance of diversity in higher education.